The new england journal of medicine n engl j med 351;19 www.nejm.org november 4, 2004 2008 sounding board The Limits of Conscientious Objection — May Pharmacists Refuse to Fill Prescriptions for Emergency Contraception? Julie Cantor, J.D., and Ken Baum, M.D., J.D. Health policy decisions are often controversial, and the recent determination by the Food and Drug Administration (FDA) not to grant over-the-coun- ter status to the emergency contraceptive Plan B was no exception. Some physicians decried the de- cision as a troubling clash of science, politics, and morality. 1 Other practitioners, citing safety, herald- ed the agency’s prudence. 2 Public sentiment mir- rored both views. Regardless, the decision preserved a major barrier to the acquisition of emergency con- traception — the need to obtain and fill a prescrip- tion within a narrow window of efficacy. Six states have lowered that hurdle by allowing pharmacists to dispense emergency contraception without a prescription. 3-8 In those states, patients can sim- ply bypass physicians. But the FDA’s decision means that patients cannot avoid pharmacists. Because emergency contraception remains behind the coun- ter, pharmacists can block access to it. And some have done just that. Across the country, some pharmacists have re- fused to honor valid prescriptions for emergency contraception. In Texas, a pharmacist, citing per- sonal moral grounds, rejected a rape survivor’s pre- scription for emergency contraception. 9 A pharma- cist in rural Missouri also refused to sell such a drug, 10 and in Ohio, Kmart fired a pharmacist for obstructing access to emergency and other birth control. 11 This fall, a New Hampshire pharmacist refused to fill a prescription for emergency contra- ception or to direct the patron elsewhere for help. Instead, he berated the 21-year-old single mother, who then, in her words, “pulled the car over in the parking lot and just cried.” 12 Although the total number of incidents is unknown, reports of phar- macists who refused to dispense emergency con- traception date back to 1991 13 and show no sign of abating. Though nearly all states offer some level of le- gal protection for health care professionals who refuse to provide certain reproductive services, only Arkansas, Mississippi, and South Dakota explicit- ly protect pharmacists who refuse to dispense emer- gency and other contraception. 14 But that list may grow. In past years, legislators from nearly two doz- en states have taken “conscientious objection” — an idea that grew out of wartime tension between re- ligious freedom and national obligation 15 and was co-opted into the reproductive-rights debate of the 1970s 16 — and applied it to pharmacists. One pro- posed law offers pharmacists immunity from civil lawsuits, criminal liability, professional sanctions, and employment repercussions. 17 Another bill, which was not pass ...

1. The
new england journal
of
medicine
n engl j med
351;19
www.nejm.org november
4, 2004
2008
sounding board
The Limits of Conscientious Objection — May Pharmacists

2. Refuse to Fill Prescriptions for Emergency Contraception?
Julie Cantor, J.D., and Ken Baum, M.D., J.D.
Health policy decisions are often controversial,
and the recent determination by the Food and Drug
Administration (FDA) not to grant over-the-coun-
ter status to the emergency contraceptive Plan B
was no exception. Some physicians decried the de-
cision as a troubling clash of science, politics, and
morality.
1
Other practitioners, citing safety, herald-
ed the agency’s prudence.
2
Public sentiment mir-
rored both views. Regardless, the decision preserved
a major barrier to the acquisition of emergency con-
traception — the need to obtain and fill a prescrip-
tion within a narrow window of efficacy. Six states
have lowered that hurdle by allowing pharmacists
to dispense emergency contraception without a
prescription.
3-8

3. In those states, patients can sim-
ply bypass physicians. But the FDA’s decision means
that patients cannot avoid pharmacists. Because
emergency contraception remains behind the coun-
ter, pharmacists can block access to it. And some
have done just that.
Across the country, some pharmacists have re-
fused to honor valid prescriptions for emergency
contraception. In Texas, a pharmacist, citing per-
sonal moral grounds, rejected a rape survivor’s pre-
scription for emergency contraception.
9
A pharma-
cist in rural Missouri also refused to sell such a
drug,
10
and in Ohio, Kmart fired a pharmacist for
obstructing access to emergency and other birth
control.
11
This fall, a New Hampshire pharmacist

4. refused to fill a prescription for emergency contra-
ception or to direct the patron elsewhere for help.
Instead, he berated the 21-year-old single mother,
who then, in her words, “pulled the car over in the
parking lot and just cried.”
12
Although the total
number of incidents is unknown, reports of phar-
macists who refused to dispense emergency con-
traception date back to 1991
13
and show no sign of
abating.
Though nearly all states offer some level of le-
gal protection for health care professionals who
refuse to provide certain reproductive services, only
Arkansas, Mississippi, and South Dakota explicit-
ly protect pharmacists who refuse to dispense emer-
gency and other contraception.
14
But that list may
grow. In past years, legislators from nearly two doz-

5. en states have taken “conscientious objection” —
an idea that grew out of wartime tension between re-
ligious freedom and national obligation
15
and was
co-opted into the reproductive-rights debate of the
1970s
16
— and applied it to pharmacists. One pro-
posed law offers pharmacists immunity from civil
lawsuits, criminal liability, professional sanctions,
and employment repercussions.
17
Another bill,
which was not passed, would have protected phar-
macists who refused to transfer prescriptions.
18
This issue raises important questions about

6. individual rights and public health. Who prevails
when the needs of patients and the morals of pro-
viders collide? Should pharmacists have a right to
reject prescriptions for emergency contraception?
The contours of conscientious objection remain un-
clear. This article elucidates those boundaries and
offers a balanced solution to a complex problem.
Because the future of over-the-counter emergency
contraception is in flux, this issue remains salient
for physicians and their patients.
pharmacists can and should exercise
independent judgment
Pharmacists, like physicians, are professionals.
They complete a graduate program to gain exper-
tise, obtain a state license to practice, and join a
professional organization with its own code of
ethics. Society relies on pharmacists to instruct pa-
tients on the appropriate use of medications and
to ensure the safety of drugs prescribed in combi-
nation. Courts have held that pharmacists, like
other professionals, owe their customers a duty of
care.
19
In short, pharmacists are not automatons
arguments in favor
of a pharmacist’s right to object

7. n engl j med
351;19
www.nejm.org november
4, 2004
sounding board
2009
completing tasks; they are integral members of the
health care team. Thus, it seems inappropriate and
condescending to question a pharmacist’s right to
exercise personal judgment in refusing to fill cer-
tain prescriptions.
professionals should not forsake their
morals as a condition of employment
Society does not require professionals to abandon
their morals. Lawyers, for example, choose clients
and issues to represent. Choice is also the norm in
the health care setting. Except in emergency de-

8. partments, physicians may select their patients and
procedures. Ethics and law allow physicians, nurs-
es, and physician assistants to refuse to participate
in abortions and other reproductive services.
14,20
Although some observers argue that active partic-
ipation in an abortion is distinct from passively
dispensing emergency contraception, others be-
lieve that making such a distinction between ac-
tive and passive participation is meaningless, be-
cause both forms link the provider to the final
outcome in the chain of causation.
conscientious objection is integral
to democracy
More generally, the right to refuse to participate in
acts that conflict with personal ethical, moral, or
religious convictions is accepted as an essential
element of a democratic society. Indeed, Oregon
acknowledged this freedom in its Death with Dig-
nity Act,
21
which allows health care providers, in-
cluding pharmacists, who are disquieted by physi-
cian-assisted suicide to refuse involvement without

9. fear of retribution. Also, like the draftee who con-
scientiously objects to perpetrating acts of death
and violence, a pharmacist should have the right
not to be complicit in what they believe to be a mor-
ally ambiguous endeavor, whether others agree with
that position or not. The reproductive-rights move-
ment was built on the ideal of personal choice; deny-
ing choice for pharmacists in matters of reproduc-
tive rights and abortion seems ironic.
pharmacists choose to enter a profession
bound by fiduciary duties
Although pharmacists are professionals, profes-
sional autonomy has its limits. As experts on the
profession of pharmacy explain, “Professionals
are expected to exercise special skill and care to
place the interests of their clients above their own
immediate interests.”
22
When a pharmacist’s ob-
jection directly and detrimentally affects a patient’s
health, it follows that the patient should come first.
Similarly, principles in the pharmacists’ code of eth-
ics weigh against conscientious objection. Given
the effect on the patient if a pharmacist refuses to
fill a prescription, the code undermines the right
to object with such broadly stated objectives as
“a pharmacist promotes the good of every patient

10. in a caring, compassionate, and confidential man-
ner,” “a pharmacist respects the autonomy and dig-
nity of each patient,” and “a pharmacist serves in-
dividual, community, and societal needs.”
23
Finally,
pharmacists understand these fiduciary obligations
when they choose their profession. Unlike con-
scientious objectors to a military draft, for whom
choice is limited by definition, pharmacists will-
ingly enter their field and adopt its corresponding
obligations.
emergency contraception is not
an abortifacient
Although the subject of emergency contraception
is controversial, medical associations,
24
govern-
ment agencies,
25

11. and many religious groups agree
that it is not akin to abortion. Plan B and similar
hormones have no effect on an established preg-
nancy, and they may operate by more than one phys-
iological mechanism, such as by inhibiting ovula-
tion or creating an unfavorable environment for
implantation of a blastocyst.
26
This duality allowed
the Catholic Health Association to reconcile its re-
ligious beliefs with a mandate adopted by Washing-
ton State that emergency contraception must be
provided to rape survivors.
27
According to the as-
sociation, a patient and a provider who aim only
to prevent conception follow Catholic teachings
and state law. Also, whether one believes that preg-
nancy begins with fertilization or implantation,
emergency contraception cannot fit squarely within
the concept of abortion because one cannot be sure
that conception has occurred.
pharmacists’ objections significantly
affect patients’ health

12. Although religious and moral freedom is consid-
ered sacrosanct, that right should yield when it
hinders a patient’s ability to obtain timely medical
treatment. Courts have held that religious free-
dom does not give health care providers an unfet-
arguments against a pharmacist’s
right to object
The
new england journal
of
medicine
2010
n engl j med
351;19
www.nejm.org november

13. 4, 2004
tered right to object to anything involving birth
control, an embryo, or a fetus.
28,29
Even though
the Constitution protects people’s beliefs, their
actions may be regulated.
30
An objection must be
balanced with the burden it imposes on others. In
some cases, a pharmacist’s objection imposes his
or her religious beliefs on a patient. Pharmacists
may decline to fill prescriptions for emergency
contraception because they believe that the drug
ends a life. Although the patient may disapprove
of abortion, she may not share the pharmacist’s
beliefs about contraception. If she becomes preg-
nant, she may then face the question of abortion
— a dilemma she might have avoided with the
morning-after pill.
Furthermore, the refusal of a pharmacist to fill
a prescription may place a disproportionately heavy
burden on those with few options, such as a poor
teenager living in a rural area that has a lone phar-
macy. Whereas the savvy urbanite can drive to an-

14. other pharmacy, a refusal to fill a prescription for a
less advantaged patient may completely bar her ac-
cess to medication. Finally, although Oregon does
have an opt-out provision in its statute regulating
assisted suicide, timing is much more important
in emergency contraception than in assisted sui-
cide. Plan B is most effective when used within 12
to 24 hours after unprotected intercourse.
31
An un-
conditional right to refuse is less compelling when
the patient requests an intervention that is urgent.
refusal has great potential for abuse
and discrimination
The limits to conscientious objection remain un-
clear. Pharmacists are privy to personal informa-
tion through prescriptions. For instance, a customer
who fills prescriptions for zidovudine, didanosine,
and indinavir is logically assumed to be infected
with the human immunodeficiency virus (HIV). If
pharmacists can reject prescriptions that conflict
with their morals, someone who believes that HIV-
positive people must have engaged in immoral
behavior could refuse to fill those prescriptions.
Similarly, a pharmacist who does not condone ex-
tramarital sex might refuse to fill a sildenafil pre-
scription for an unmarried man. Such objections
go beyond “conscientious” to become invasive. Fur-

15. thermore, because a pharmacist does not know
a patient’s history on the basis of a given prescrip-
tion, judgments regarding the acceptability of a
prescription may be medically inappropriate. To
a woman with Eisenmenger’s syndrome, for exam-
ple, pregnancy may mean death. The potential for
abuse by pharmacists underscores the need for pol-
icies ensuring that patients receive unbiased care.
Compelling arguments can be made both for and
against a pharmacist’s right to refuse to fill pre-
scriptions for emergency contraception. But even
cogent ideas falter when confronted by a dissident
moral code. Such is the nature of belief. Even so,
most people can agree that we must find a workable
and respectful balance between the needs of pa-
tients and the morals of pharmacists.
Three possible solutions exist: an absolute right
to object, no right to object, or a limited right to ob-
ject. On balance, the first two options are untena-
ble. An absolute right to conscientious objection
respects the autonomy of pharmacists but dimin-
ishes their professional obligation to serve patients.
It may also greatly affect the health of patients, es-
pecially vulnerable ones, and inappropriately brings
politics into the pharmacy. Even pharmacists who
believe that emergency contraception represents
murder and feel compelled to obstruct patients’
access to it must recognize that contraception and
abortion before fetal viability remain legal nation-
wide. In our view, state efforts to provide blanket
immunity to objecting pharmacists are misguid-
ed. Pharmacies should follow the prevailing em-
ployment-law standard to make reasonable at-

16. tempts to accommodate their employees’ personal
beliefs.
32
Although neutral policies to dispense med-
ications to all customers may conflict with phar-
macists’ morals, such policies are not necessarily
discriminatory, and pharmacies need not shoul-
der a heightened obligation of absolute accommo-
dation.
Complete restriction of a right to conscientious
objection is also problematic. Though pharmacists
voluntarily enter their profession and have an ob-
ligation to serve patients without judgment, forc-
ing them to abandon their morals imposes a heavy
toll. Ethics and law demand that a professional’s
morality not interfere with the provision of care in
life-or-death situations, such as a ruptured ectop-
ic pregnancy.
29
Whereas the hours that elapse be-
tween intercourse and the intervention of emergen-
cy contraception are crucial, they do not meet that
strict test. Also, patients who face an objecting phar-
macist do have options, even if they are less pref-
erable than having the prescription immediately
toward balance

17. n engl j med
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www.nejm.org november
4, 2004
sounding board
2011
filled. Because of these caveats, it is difficult to de-
mand by law that pharmacists relinquish individ-
ual morality to stock and fill prescriptions for emer-
gency contraception.
We are left, then, with the vast middle ground.
Although we believe that the most ethical course is
to treat patients compassionately — that is, to stock
emergency contraception and fill prescriptions for
it — the totality of the arguments makes us stop
short of advocating a legal duty to do so as a first re-
sort. We stop short for three reasons: because emer-
gency contraception is not an absolute emergency,
because other options exist, and because, when pos-

18. sible, the moral beliefs of those delivering care
should be considered. However, in a profession that
is bound by fiduciary obligations and strives to re-
spect and care for patients, it is unacceptable to
leave patients to fend for themselves. As a general
rule, pharmacists who cannot or will not dispense a
drug have an obligation to meet the needs of their
customers by referring them elsewhere. This idea is
uncontroversial when it is applied to common med-
ications such as antibiotics and statins; it becomes
contentious, but is equally valid, when it is applied
to emergency contraception. Therefore, pharma-
cists who object should, as a matter of ethics and
law, provide alternatives for patients.
Pharmacists who object to filling prescriptions
for emergency contraception should arrange for
another pharmacist to provide this service to cus-
tomers promptly. Pharmacies that stock emer-
gency contraception should ensure, to the extent
possible, that at least one nonobjecting pharma-
cist is on duty at all times. Pharmacies that do not
stock emergency contraception should give clear
notice and refer patients elsewhere. At the very
least, there should be a prominently displayed sign
that says, “We do not provide emergency contracep-
tion. Please call Planned Parenthood at 800-230-
PLAN (7526) or visit the Emergency Contraception
Web site at www.not-2-late.com for assistance.”
However, a direct referral to a local pharmacy or
pharmacist who is willing to fill the prescription is
preferable. Objecting pharmacists should also re-
direct prescriptions for emergency contraception
that are received by telephone to another pharma-
cy known to fill such prescriptions. In rural areas,
objecting pharmacists should provide referrals with-

19. in a reasonable radius.
Notably, the American Pharmacists Association
has endorsed referrals, explaining that “providing
alternative mechanisms for patients . . . ensures
patient access to drug products, without requir-
ing the pharmacist or the patient to abide by per-
sonal decisions other than their own.”
33
A referral
may also represent a break in causation between
the pharmacist and distributing emergency contra-
ception, a separation that the objecting pharmacist
presumably seeks. And, in deference to the law’s
normative value, the rule of referral also conveys
the importance of professional responsibility to
patients. In areas of the country where referrals are
logistically impractical, professional obligation may
dictate providing emergency contraception, and
a legal mandate may be appropriate if ethical obli-
gations are unpersuasive.
Inevitably, some pharmacists will disregard our
guidelines, and physicians — all physicians —
should be prepared to fill gaps in care. They should
identify pharmacies that will fill patients’ prescrip-
tions and encourage patients to keep emergency
contraception at home. They should be prepared to
dispense emergency contraception or instruct pa-
tients to mimic it with other birth-control pills. In
Wisconsin, family-planning clinics recently began

20. dispensing emergency contraception, and the state
set up a toll-free hotline to help patients find physi-
cians who will prescribe it.
34
Emergency depart-
ments should stock emergency contraception and
make it available to rape survivors, if not all patients.
In the final analysis, education remains critical.
Pharmacists may have misconceptions about emer-
gency contraception. In one survey, a majority of
pharmacists mistakenly agreed with the statement
that repeated use of emergency contraception is
medically risky.
35
Medical misunderstandings that
lead pharmacists to refuse to fill prescriptions for
emergency contraception are unacceptable. Pa-
tients, too, may misunderstand or be unaware of
emergency contraception.
36
Physicians should teach
patients about this option before the need arises,
since patients may understand their choices better

21. when they are not under stress. Physicians should
discuss emergency contraception during office vis-
its, offer prescriptions in advance of need, and pro-
vide education through pamphlets or the Internet.
Web sites such as www.not-2-late.com allow users
to search for physicians who prescribe emergency
contraception by ZIP Code, area code, or address,
and Planned Parenthood offers extensive educa-
tional information at www.plannedparenthood.
org/library/birthcontrol/ec.html, including details
about off-label use of many birth-control pills for
emergency contraception.
sounding board
2012
n engl j med
351;19
www.nejm.org november
4, 2004
Our principle of a compassionate duty of care
should apply to all health care professionals. In a

22. secular society, they must be prepared to limit the
reach of their personal objection. Objecting phar-
macists may choose to find employment opportu-
nities that comport with their morals — in a reli-
gious community, for example — but when they
pledge to serve the public, it is unreasonable to ex-
pect those in need of health care to acquiesce to
their personal convictions. Similarly, physicians
who refuse to write prescriptions for emergency
contraception should follow the rules of notice and
referral for the reason previously articulated: the
beliefs of health care providers should not trump
patient care. It is difficult enough to be faced with
the consequences of rape or of an unplanned preg-
nancy; health care providers should not make the
situation measurably worse.
Former Supreme Court Chief Justice Charles
Evans Hughes called the quintessentially Ameri-
can custom of respect for conscience a “happy tra-
dition”
37
— happier, perhaps, when left in the set-
ting of a draft objection than when pitting one
person’s beliefs against another’s reproductive
health. Ideally, conflicts about emergency contra-
ception will be rare, but they will occur. In July,
11 nurses in Alabama resigned rather than provide
emergency contraception in state clinics.

23. 38
As pa-
tients understand their birth-control options, con-
flicts at the pharmacy counter and in the clinic may
become more common. When professionals’ defi-
nitions of liberty infringe on those they choose to
serve, a respectful balance must be struck. We offer
one solution. Even those who challenge this divi-
sion of burdens and benefits should agree with our
touchstone — although health professionals may
have a right to object, they should not have a right
to obstruct.
From the Yale University School of Medicine (J.C.) and Wiggin
and
Dana (K.B.) — both in New Haven, Conn.
1.
Drazen JM, Greene MF, Wood AJJ. The FDA, politics, and Plan
B.
N Engl J Med 2004;350:1561-2.
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Me. Rev. Stat. Ann. tit.32, §§ 13821-13825 (2004).

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27. 18.
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Copyright © 2004 Massachusetts Medical Society.
Reproduced with permission of the copyright owner. Further
reproduction prohibited without permission.
Principles and
Approaches
to Criminal
Investigation,

32. Part 4
By Gregory M. Vecchi, PhD, CFC, CHS-V,
DABCIP, DABLEE
For the purposes of this series of articles, the
term investigative processes will be used to de-
scribe both criminal investigation and crime
scene processing. Any distinctions between crim-
inal investigation and crime scene processing
will be designated as such. Although crime scene
processing is part of criminal investigation, it is
distinct; crime scene processing requires rigorous
scientific methodologies (i.e., collection proce-
dures, testing protocols, etc.), while criminal in-
vestigation has less of a “hard science” character
and relies more on the experience and skills of
the investigator rather than rigid scientific pro-
tocols and procedures. In this light, crime scene
processing can be viewed as the “science” of in-
vestigative processes, whereas criminal investi-
gation can be viewed as the “art.” The format of
this article series is to provide information on the
entire spectrum of investigative processes that is
useful for all individuals involved in investiga-
tions: the responding officer, detectives/investi-
gators, police supervisors, lawyers, judges, and
other criminal justice professionals. This article
examines special investigations such as white
collar crime, drug trafficking, high-tech crime,
and terrorism using the Enterprise Theory of
Investigation; trial and testimony; and conflict
and perspective.
Special Investigations
Special investigations include white-collar crime,

33. drug trafficking, organized crime, high tech-
nology or cyber crime, cults, and terrorism
(Criminology Today, 1995-2002a, 1995-2002b;
Dyson, 2005). These crimes require special in-
vestigative techniques, such as undercover op-
erations and the use of the Enterprise Theory
of Investigation. White-collar crime is often
related to corporate crime, such as the Enron
and WorldCom scandals; however, it is also as-
sociated with health care, telemarketing, bank
and securities, contract, and residential mov-
ing. Organized crime is usually associated with
centrally controlled organized criminal organi-
zations, such as Italian, Italian-American, and
Colombian criminal groups; however, lesser
known decentralized criminal organizations
are making inroads. For example, Russian and
Israeli criminal groups are threatening to take
control of rackets like drugs, money launder-
ing, and many extortion-related schemes, which
were once the exclusive realm of the centralized
organized criminal groups.
The views
expressed in
this article do
not necessarily
represent the
views of the FBI.
10 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com
CASE STUDY

34. Drug trafficking still remains a very lucrative
and corrupting influence in the United States
(Criminology Today, 1995-2002a). Although
there has been some success in curbing the influx
of illegal drugs through enforcement and educa-
tional programs, the amazing amount of wealth,
resources, and cunning of drug traffickers is
sometimes beyond the capability of the govern-
ment to control. As a result, the government has
begun to cut into the profits of the illegal drug
trade through the aggressive application of assets
forfeiture. For example, many law enforcement
agencies assign officers to Drug Enforcement
Administration (DEA) task forces for the pur-
pose of obtaining forfeited assets and currency
through drug investigations, which are used to
supplement their operating budgets.
High-technology crime affects significant as-
sets and has the potential to be extremely costly
and dangerous, especially with regards to infra-
structural components such as air traffic con-
trol, nuclear facilities, power grids, satellites,
and banking systems (Criminology Today, 1995-
2002b). Over the past decade, computer hackers
have become very sophisticated and many are
being paid by other organized crime and terrorist
groups to manipulate these assets for profit and
control. Because these types of high-tech crime
are fairly anonymous, they are very difficult and
expensive to solve.
Terrorism has eclipsed nearly all other in-
vestigative priorities since the September 11,
2001, terrorist attacks in New York City and
Washington, DC. These investigations are very

35. complex, due in part to the secret nature of terror-
ist activities, the fluidity of their operations, their
ability to embed themselves among us, the lack
of centralized control and stated national affilia-
tions, their willingness to die for their “cause,” and
their uncooperative nature when caught (Dyson,
2005).
Enterprise Theory of Investigation
Special investigations such as drugs, organized
crime, cyber-crime, and terrorism require a dif-
ferent approach than more traditional crimes
such as murder, robbery, and arson. Traditional
investigations are focused on individuals, who,
for the most part, are principally responsible for
the crime (Criminology Today, 1995-2002a,
1995-2002b; Dyson, 2005). Once they are
caught, prosecuted, and incarcerated, the crime
stops. Shoplifting and assault are examples of
less complex individual-focused cases, whereas
serial rapes and murders and the Washington,
DC sniper case are examples of more complex
individual-focused investigations. With special
investigations, the focus needs to shift from be-
ing solely on individuals to their collective “en-
terprise” as a whole (the “enterprise” representing
a specific racket—drugs, extortion, data acqui-
sition or destruction, terrorism, etc.) because
removing any one person will not stop further
crimes from being committed by the remain-
ing network. Therefore, the goal is to disrupt,
dismantle, and incapacitate the entire network.
Drug trafficking is the most common example
of this, where continually arresting street dealers
and raiding crack houses only result in someone

36. else taking their places. Terrorism has similar
characteristics with the additional disturbing
trait of individuals lining up to die in service to
their organizations’ ideologies and objectives.
Most criminal organizations are in business to
make money, whether it is accomplished through
selling illegal drugs or stolen property, launder-
ing other people’s money, extortion, or a myriad
of other schemes. Even terrorist organizations are
in the business of making money in order to fi-
nance their ideological or political ambitions and
objectives, as well as pocket some along the way
(Dyson, 2005). The command and control of
these organizations are efficient and resistant to
traditional law enforcement techniques because
they have learned to delegate the authority to
multiple people and the highest leaders of the
organization provide direction but rarely do any
of the “dirty work.” Due to these characteristics,
the Enterprise Theory of Investigation focuses
on targeting the communication apparatus of
the organization and following the money. In
other words, the focus is on developing human
intelligence and conducting covert operations
in order to capture communications between
members of the organization and identifying
Gregory M. Vecchi, PhD, CFC,
CHS-V, DABCIP, DABLEE is the
Unit Chief of the Behavioral
Science Unit (BSU), Federal
Bureau of Investigation (FBI). Dr.
Vecchi conducts research, training,
and consultation activities in
behavior-based conflict analysis
and resolution, crisis management,

37. conflict and crisis communication,
and global hostage-taking.
Spring 2010 THE FORENSIC EXAMINER® 11(800) 592-1399
and seizing its assets.
As previously mentioned, the goal is to dis-
rupt, dismantle, and incapacitate the entire crim-
inal organization. Therefore, the investigator
should penetrate the organization at the highest
level possible and use techniques that identify
and expose its leadership to prosecution and its
assets to forfeiture. The investigator should also
strive to move up and down all echelons of the
organization in order to ensure maximization of
prosecution and assets forfeiture.
Prosecuting these types of criminal organi-
zations require the use of conspiracy laws and
special laws such as the Racketeer Influenced
and Corrupt Organizations (RICO) Act, the
Continuing Criminal Enterprise (CCE) Act, and
the Patriot Act. These laws allow the prosecu-
tion of individuals who are culpable in criminal
behavior based only on their conversations with
others who actually commit the crimes, which
allows prosecution of those who only give the
orders. For example, if Robert ordered Bill to
murder Ted and Bill carried it out, both Robert
and Bill could be charged with Ted’s murder.
Without special laws like conspiracy, Robert
could never be charged.
The conduct of these investigations is al-
most always covert in nature because the sus-
pects know they are committing crimes and

38. they try to avoid contact with law enforce-
ment. As such, it is necessary to use covert
and undercover techniques, as well as overt
techniques (Department of the Army, 1985;
Fisher, 2004; Lyman, 2008; Osterburg & Ward,
2007). Covert techniques involve the gathering
of criminal intelligence and evidence by using
special techniques such as pen registers and
wiretaps. Undercover techniques involve col-
lecting criminal intelligence through the use
of undercover informants, agents and officers,
consensual monitoring, and surveillance. Overt
techniques are usually the last methods used for
collecting criminal intelligence and evidence
through the use of grand juries, interviews, in-
terrogations, and search warrants.
Special investigations concerning violations
such as drugs, organized crime, cyber crime,
and terrorism require the investigator to focus
on the entire network of individuals who make
up the organization, rather than focusing on
individual criminal behavior (Department of
the Army, 1985; Fisher, 2004; Lyman, 2008;
Osterburg & Ward, 2007). Through the use of
conspiracy-based statutes and covert/undercov-
er techniques, the investigator targets the com-
munication apparatus of the organization and
its assets in order to disrupt, dismantle, and ul-
timately incapacitate the organization. This al-
lows multiple prosecutions of the organization’s
members as well as forfeiture of its assets.
Trial
The investigator must be very cognizant of
the importance of legal processes and con-

39. siderations while conducting an investiga-
tion if he or she expects the results to be ad-
missible in court (Department of the Army,
1985; Fisher, 2004; Lyman, 2008; Osterburg
& Ward, 2007). Among some of the most ob-
vious aspects of these legal processes and con-
siderations are criminal law, constitutional
law, and Miranda rights waivers; however, the
importance of trial and courtroom testimony
considerations is oftentimes overlooked. It is
important to remember that winning at trial
is often more about who presents the better
argument than it is about fairness or justice.
This may seem disappointing; however, it is a
reality that the investigator must acknowledge
and live with if he or she is to be effective in
the courtroom.
Before a trial begins, hearings will have oc-
curred during which the defense will attempt to
obtain rulings from the judge that will be favor-
able to their side. Through discovery, the defense
“these investigations are
very complex, due in part,
to the secret nature of ter-
rorist activities, the flu-
idity of their operations,
their ability to embed them-
selves among us, the lack
of centralized control and
stated national “Cause,”
and their uncooperative

40. nature when caught.”
12 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com
will have been given access to the evidence that
the prosecution plans to present, which is often
challenged as being unfair, especially with highly
damaging evidence (Department of the Army,
1985; Fisher, 2004; Lyman, 2008; Osterburg &
Ward, 2007).
Once the trial is set, it will usually be held in
front of a jury in complex cases. A jury will be
selected and both the prosecution and defense
will have opportunities to challenge prospec-
tive jurors. As the trial begins, the prosecutor
will outline his or her case during opening ar-
guments and the defense will outline his or her
case, each one postulating the weaknesses of the
other’s case.
Following the opening arguments, the pros-
ecutor will present his or her case, usually be-
ginning with calling witnesses whom were ini-
tially interviewed by investigators. It is also
likely that the prosecutor will have crime labo-
ratory experts testify concerning the physical
evidence that was recovered by investigators.
Additionally, other law enforcement officers
will testify about information they developed
during the case.
The defense will then present its case, usu-
ally challenging the physical and testimonial
evidence presented by the prosecutor. Most of
the challenges occur during cross-examination
of the investigators where the defense will at-

41. tempt to call into question the conduct of the
investigation and the credibility of the investiga-
tors. Technical issues concerning improper col-
lection efforts, chain of custody, and method of
analyses of the physical evidence are commonly
raised. Questions concerning the accuracy of
observations, interviews, affidavits, and rights
waivers are examples of challenges to testimo-
nial evidence.
Following the presentation of evidence, both
sides will deliver their closing arguments. The
prosecution will summarize the evidence they pre-
sented and explain how it proves the defendant’s
guilt. Thereafter, the defense will review the evi-
dence and argue how the evidence presented does
not prove their client’s guilt. Ultimately, the jury
will render a verdict of guilty, not guilty, or hung
(meaning that they couldn’t come to a consensus
on the defendant’s guilt or innocence).
Courtroom Testimony
Ultimately, a critical factor in bringing a case to
fruition is the investigator’s testimony in court.
As a result, it is critical that the investigator
thoroughly prepares before being called to the
stand (Department of the Army, 1985; Fisher,
2004; Lyman, 2008; Osterburg & Ward, 2007).
When preparing for trial, the investigator should
coordinate closely with the prosecutor to avoid
surprises in court. This coordination involves
spending enough time with the prosecutor to
determine what questions will be asked by the
prosecutor and what responses to expect from
the investigator based on the evidence and facts
of the investigation. In addition, the investigator
should query the prosecutor on possible ques-

42. tions and alternative interpretation of the facts
of the investigation that may be brought up by
the defense. The following actions should be
considered before testifying (Department of
the Army, 1985; Fisher, 2004; Lyman, 2008;
Osterburg & Ward, 2007):
Review investigative actions and coordi-•
nate with the prosecutor before attending
the hearing.
Review all statements for clarity.•
Review all waivers, affidavits, and search war-•
rants for investigative and legal sufficiency.
Review times, dates, and places of primary •
importance to the investigation.
Review investigative notes and prepare •
miscellaneous notes for use as quick refer-
ence material.
Avoid trying to memorize notes.•
Coordinate with the evidence custodian •
and physically review all evidence acquired
during the investigation.
Verify that the evidence is properly marked •
for identification
Review the chain of custody.•
Coordinate with the prosecutor on specific •
items of evidence required for court.
Refresh memory by visiting the scene of •
the crime.
During court, it is important for investigators
to establish themselves as credible witnesses
(Department of the Army, 1985; Fisher, 2004;
Lyman, 2008; Osterburg & Ward, 2007). To
Spring 2010 THE FORENSIC EXAMINER® 13(800) 592-1399

43. accomplish this, the investigator should
present an appearance marked by clean-
liness, neatness, and concern for the de-
tails. Additionally, the investigator should
refrain from distracting mannerisms or
actions, such as shaking, fidgeting, or ex-
cessive arm motions. Investigators should
also avoid using police jargon or technical
language, as it tends to confuse the jury.
For example, instead of saying “I then ob-
served the suspect exit the vehicle,” the in-
vestigator could say, “I then saw Mr. Jones
get out of his car.”
If an objection is raised by either the pros-
ecution or defense, the investigator should
stop his or her testimony until the judge
rules on the objection. In addition, the in-
vestigator should never blurt out answers to
a question that is asked by the defense un-
til he or she is sure that the prosecution will
not object. Likewise, the investigator should
never volunteer any information while testi-
fying that was not called for in a question. If
the investigator does not know the answer to
a question, he or she should respond, “I do
not know,” rather than trying to guess, which
can cause a loss of credibility (Department of
the Army, 1985; Fisher, 2004; Lyman, 2008;
Osterburg & Ward, 2007).
Finally, the investigator should keep in
mind that during cross-examination, the
defense counsel will use a variety of ques-
tioning techniques in attempts to establish

44. inconsistencies and prejudices regardless
of the strength of the case (Department
of the Army, 1985; Fisher, 2004; Lyman,
2008; Osterburg & Ward, 2007). This
should be expected, so it is in the investi-
gator’s best interest to remain calm, polite,
and professional.
The best any investigator can do is to
bring into court a well-prepared case.
The investigator should not expect the
defense to plea bargain or stipulate to
anything. In fact, the investigator should
expect rigorous cross-examination. The in-
vestigator must be prepared to provide the
best testimony possible, which is grounded
in good preparation and coordination with
the prosecutor.
Conflict and Perspective
The job of investigators is rife with conflict,
both within and outside their agencies.
Investigators are constantly trying to meet
the needs of the investigation, and when
someone or something blocks those needs,
conflict ensues; therefore, it is important
to understand the importance of perspec-
tive as it relates to dealing with conflict
between entities (inter-conflict) and with-
in entities (intra-conflict) (Vecchi, 2006).
Many of the most noticeable investigative
conflicts occur inter-organizationally with
entities outside of the investigator’s parent
agency. For example, an investigator who
needs a certain witnesses’ testimony would
experience conflict if that witness was not
allowed to testify. Likewise, conflict would

45. occur if, at the last minute, a prosecutor
unilaterally decides to plea a defendant
to a lesser charge against the wishes of the
investigator, causing the investigator to
lose credibility with his or her agency be-
cause the bigger crime was not charged as
promised.
Intra-organizational conflict occurs
when an investigator’s needs are blocked by
someone within his or her agency (Vecchi,
2006). For example, an investigator who
believes that an undercover buy-walk pur-
chase of drugs from a suspect would be
the best way to prove the case is prevent-
ed from doing so from the supervisor who
believes that a buy-bust scenario would
be better. In this example, differences in
perspective are at the root of the conflict.
The investigator is focused on the buy-
walk scenario because he or she perceives
that this will lead to a better case, as this
will allow multiple drug purchases from
the suspect (thus more charges) and better
the odds of the undercover officer being
able to penetrate deeper into the crimi-
nal organization and eventually arresting
more people. Contrarily, the supervisor is
focused on the buy-bust scenario because
this will ensure an arrest and likely con-
viction, productive statistics, and allow for
the recovery of the buy money for other
operations.
Waco: An Example of Perceptual Conflict
One of the most enduring and vivid exam-
ples of how differences in perspective can

46. underpin deadly conflict occurred in 1993
during the siege at Waco, Texas (Boyer &
Kirk, 1995; Dennis, 1993; Vecchi, 2002).
On February 28, 1993, Bureau of Alcohol,
Tobacco, and Firearms (ATF) agents raided
the Mount Carmel Center with a search
warrant for illegal weapons. Upon attempt-
ing to serve the warrant, four ATF agents
were killed and 16 others were wound-
ed. Additionally, an undetermined num-
ber of Branch Davidians were killed or
injured. Among the Branch Davidians in-
jured was David Koresh, who was their
leader. Following the botched raid, the ATF
agents withdrew and the FBI deployed their
elite tactical and negotiation teams from
Quantico, Virginia: the Hostage Rescue
Team (HRT) and the Critical Incident
Negotiation Team (CINT). Negotiators
began negotiating with Koresh and some
of his followers, while the HRT set up a
perimeter around the compound and de-
ployed armored vehicles.
The CINT advised against using ha-
rassment and favored establishing rap-
port and trust with Koresh and his follow-
ers (Boyer & Kirk, 1995; Dennis, 1993;
Vecchi, 2002). Nevertheless, the electricity
to the Mount Carmel Center was cut off,
and the compound was illuminated with
bright lights at night to increase the pres-
sure on the Branch Davidians to surrender.
These actions by the HRT occurred despite
objections from the CINT, which caused
Koresh and his followers to perceive this ac-
tion as a “huge setback.” The HRT wanted

47. to show force, but the CINT believed that
force would break the fragile trust between
Koresh and the negotiators.
Negotiations continued and Koresh al-
lowed several of his followers to leave the
compound (Boyer & Kirk, 1995; Dennis,
1993; Vecchi, 2002). Despite this success,
the HRT responded by playing loud music
causing Koresh to respond by saying that
no others would come out. The conflict
between the HRT and the CINT intensi-
14 THE FORENSIC EXAMINER® Spring 2010 www.acfei.com
fied, as the CINT tried to influence the FBI
commanders to use negotiation techniques
to persuade the Branch Davidians to sur-
render while the HRT continued to increase
their tactical posturing. A tear gas plan was
ultimately decided upon. The HRT subse-
quently cleared away Koresh’s cars and other
vehicles. In response, some Davidians held
children up in tower windows and a sign
reading “Flames Await” was posted.
On April 19, 1993, an FBI negotiator
telephoned the Branch Davidians and an-
nounced the siege. The HRT then began
inserting tear gas into the compound us-
ing armored vehicles and the Davidians
opened fire on them. The HRT contin-
ued the application of tear gas, breach-
ing several areas of the building, causing a
portion of the roof and the right-rear wall
to collapse. Thereafter, fires started in at

48. least three locations within the compound.
The CINT telephoned Koresh and im-
plored him to lead his followers out safely;
however, only nine Davidians fled Mount
Carmel and were subsequently arrested.
Several FBI agents then heard “systematic
gunfire,” which convinced them that the
Davidians were killing themselves. After the
fire was squelched, more than 80 Branch
Davidians, including 22 children, were
found dead (Boyer & Kirk, 1995; Dennis,
1993; Vecchi, 2002).
Differences of Perspective
By instinct and training, the HRT was
inclined to action (Boyer & Kirk, 1995;
Dennis, 1993; Vecchi, 2002; Vecchi, 2006).
One member of the HRT stated: “A crime’s
been committed. I’m talking the murder
charges and you’ve got to do something
about it. You CAN NOT [emphasis add-
ed] just let these people sit” (Boyer & Kirk,
1993). An HRT sniper stated: “The more
uncomfortable we make them inside, the
more apt they are to try and negotiate bet-
ter” (Boyer & Kirk, 1995). The negotia-
tions coordinator at Waco, exhibited a dif-
ferent perspective: “You can’t deal with a
cohesive group like it’s a group of bank
robbers because the things you can do to
bank robbers to make them come out sim-
ply drives the Davidians together. If you
look at the core of a nuclear bomb, it’s this
tightly packed ball of uranium, and what
makes that so powerful is it’s so tightly

49. packed. The Davidians were tightly packed
and all we did was compress it even more
and make it more volatile” (Boyer & Kirk,
1995).
The conflict between the HRT and the
CINT was more than just a difference of
perspectives; it was also played out physical-
ly (Boyer & Kirk, 1995; Dennis, 1993). For
example, during a negotiation between the
FBI chief negotiator and Steve Schneider
(an assistant to Koresh), Schneider informed
the negotiator that the HRT was running
over their [Davidians’] guard shacks. The
negotiator, surprised and upset about not
knowing about this, tells Schneider: “You’re
kidding, I know they’ve [HRT] been or-
dered NOT [emphasis added] to go in
there!” (Boyer & Kirk, 1995).
During Waco, conflict developed over
the perceived differences in perspectives and
world views between the tactical and nego-
tiation teams. This conflict occurred as a re-
sult of the individual organizational culture
of each team, which separated them from
each other based on their differing perspec-
tives, world views, beliefs and philosophies.
Likewise, but from an individual perspec-
tive, investigators also experience conflict as
a result of differences of opinions and per-
spectives on how best to handle investiga-
tions (Boyer & Kirk, 1995; Dennis, 1993;
Vecchi, 2002). To reduce this conflict, the
investigator must be aware of these other
opinions and perspectives and take them
into account when presenting alternatives
that strive to meet the needs of all stakehold-

50. ers of the investigation (Vecchi, 2006).
References
Boyer, P. J., & Kirk, M. (1995). Waco: The inside
story (M. Kirk, Director). In M. Kirk,
M. McLeod, & K. Levis (Producers), Frontline. Bos-
ton: WGBH Educational Foundation.
Criminology Today. (1995-2002a). Drug abuse and
crime. (chap. 13). Retrieved from http://cwx.pren-
hall.com/crim2day/chapter13/
Criminology Today. (1995-2002b). Technology and
crime. (chap. 14). Retrievedfrom http://cwx.pren-
hall.com/crim2day/chapter14/
Dennis, E.S.G., Jr. (1993). Evaluation of the handling
of the Branch Davidian stand-off in Waco, Texas:
February 28 to April 19, 1993. Washington, DC:
U.S. Government Printing Office.
Department of the Army. (1985). Law enforcement
investigations. Washington, DC: Author.
Dyson, W. E. (2005). Terrorism: An investigator’s
handbook (2nd ed.). Cincinnati, OH:
Anderson Publishing.
Fisher, B. A. J. (2004). Techniques of crime scene
investigation (7th ed.). Boca Raton, FL: CRC
Press.
Lyman, M. D. (2008). Criminal investigation: The

51. art and science (5th ed.). Upper Saddle River, NJ:
Prentice Hall.
Osterburg, J. W., & Ward, R. H. (2007). Criminal
investigation: A method for reconstructing the past
(5th ed.). Newark, NJ: Lexis-Nexis.
Vecchi, G. M. (2006). Assessing organizational group
conflict in law enforcement hostage/barricade man-
agement. Ann Arbor, MI: Proquest.
Vecchi, G. M. (2002). Hostage/barricade management:
A hidden conflict within law enforcement. FBI Law
Enforcement Bulletin, 71(5), 1-7. n
Spring 2010 THE FORENSIC EXAMINER® 15(800) 592-1399
Reproduced with permission of the copyright owner. Further
reproduction prohibited without permission.
P E R S P E C T I V E
n engl j med 360;15 nejm.org april 9, 20091484
Conscientious Objection Gone Awry — Restoring Selfless
Professionalism in Medicine
Conscientious Objection Gone Awry — Restoring Selfless
Professionalism in Medicine
Julie D. Cantor, M.D., J.D.

52. A new rule from the Department of Health and Human Services
(DHHS) has emerged as the latest
battleground in the health care con-
science wars. Promulgated during
the waning months of the Bush ad-
ministration, the rule became effec-
tive in January. Heralded as a “pro-
vider conscience regulation” by its
supporters and derided as a “mid-
night regulation” by its detractors,
the rule could alter the landscape
of federal conscience law.
The regulation, as explained in
its text (see the Supplementary Ap-
pendix, available with the full text
of this article at NEJM.org), aims
to raise awareness of and ensure
compliance with federal health
care conscience protection stat-
utes. Existing laws, which are tied
to the receipt of federal funds, ad-
dress moral or religious objections
to sterilization and abortion. They
protect physicians, other health
care personnel, hospitals, and in-
surance plans from discrimination
for failing to provide, offer training
for, fund, participate in, or refer pa-
tients for abortions. Among other
things, the laws ensure that these
persons cannot be required to par-
ticipate in sterilizations or abor-
tions and that entities cannot be
required to make facilities or per-

53. sonnel available for them. And they
note that decisions on admissions
and accreditation must be di vorced
from beliefs and behaviors related
to abortion. On their face, these
laws are quite broad.
But the Bush administration’s
rule is broader still. It restates ex-
isting laws and exploits ambigu-
ities in them. For example, one
statute says, “No individual shall
be required to perform or assist in
the performance of any part of a
health service program or research
activity funded” by DHHS if it
“would be contrary to his religious
beliefs or moral convictions.”1 Here
the rule sidesteps courts, which in-
terpret statutory ambiguities and
discern congressional intent, and
of fers sweeping definitions. It de-
fines “individual” as physicians,
other health care providers, hospi-
tals, laboratories, and insurance
companies, as well as “employees,
volunteers, trainees, contractors,
and other persons” who work for
an entity that receives DHHS funds.
It defines “assist in the perfor-
mance” as “any activity with a rea-
sonable connection” to a procedure
or health service, including coun-
seling and making “other arrange-
ments” for the activity. Although

54. the rule states that patients’ ability
to obtain health care services is un-
changed, its expansive definitions
suggest otherwise. Now everyone
connected to health care may opt
out of a wide range of activities,
from discussions about birth con-
trol to referrals for vaccinations. As
the rule explains, “an employee
whose task it is to clean the instru-
ments used in a particular proce-
dure would also be considered to
assist in the performance of the
particular procedure” and would
therefore be protected. Taken to its
logical extreme, the rule could cause
health care to grind to a halt.
It also raises other concerns. In
terms of employment law, Title VII
of the Civil Rights Act, which ap-
plies to organizations with 15 or
more employees, requires balanc-
ing reasonable accommodations for
employees who have religious, ethi-
cal, or moral objections to certain
aspects of their jobs with undue
hardship for employers. But the
new rule suggests that if an em-
ployee objects, for example, to be-
ing a scrub nurse during operative
treatment for an ectopic pregnan-
cy, subsequently reassigning that
employee to a different department
may constitute unlawful discrimi-

55. nation — a characterization that
may be at odds with Title VII juris-
prudence.2 As officials of the Equal
Employment Opportunity Commis-
sion remarked when it was pro-
posed, the rule could “throw this
entire body of law into question.”3
Furthermore, although the rule
purports to address intolerance
toward “individual objections to
abortion or other individual reli-
gious beliefs or moral convictions,”
it cites no evidence of such intoler-
ance — nor would it directly ad-
dress such intolerance if it existed.
Constitutional concerns about the
rule, including violations of state
autonomy and rights to contracep-
tion, also lurk. And the stated goals
of the rule — to foster a “more in-
clusive, tolerant environment” and
promote DHHS’s “mission of ex-
panding patient access to neces-
sary health services” — conflict
with the reality of extensive objec-
tion rights. Protection for the si-
lence of providers who object to
care is at odds with the rule’s call
for “open communication” be-
tween patients and physicians.
Moreover, there is no emergency
exception for patient care. In states
that require health care workers
to provide rape victims with in-
formation about emergency con-

56. traception, the rule may allow
them to refuse to do so.
Recently, the DHHS, now an-
swering to President Barack
Obama, took steps to rescind the
rule (see the Supplementary Ap-
n engl j med 360;15 nejm.org april 9, 2009
P E R S P E C T I V E
1485
pendix). March 10 marked the be-
ginning of a 30-day period for
public comment on the need for
the rule and its potential effects.
Analysis of the comments (www.
regulations.gov) and subsequent
action could take some months. If
remnants of the rule remain, liti-
gation will follow. Lawsuits have
already been filed in federal court,
and Connecticut Attorney General
Richard Blumenthal, who led one
of the cases, has vowed to contin-
ue the fight until the regulation is
“finally and safely stopped.”4
This state of flux presents an
opportunity to reconsider the
scope of conscience in health care.
When broadly defined, conscience

57. is a poor touchstone; it can result
in a rule that knows no bounds.
Indeed, it seems that our problem
is not insufficient tolerance, but
too much. We have created a state
of “conscience creep” in which all
behavior becomes acceptable —
like that of judges who, despite
having promised to uphold all
laws, recuse themselves from cases
in which minors seek a judicial
bypass for an abortion in states
requiring parental consent.5
The debate is not really about
moral or religious freedom writ
large. If it were, then the medical
profession would allow a broad
range of beliefs to hinder patient
care. Would we tolerate a surgeon
who holds moral objections to
transfusions and refuses to order
them? An internist who refuses to
discuss treatment for diabetes in
overweight patients because of
moral opposition to gluttony? If
the overriding consideration were
individual conscience, then these
objections should be valid. They
are not (although they might well
be permitted under the new rule).
We allow the current conscience-
based exceptions because abortion
remains controversial in the Unit-
ed States. As is often the case with

58. laws touching on reproductive
freedom, the debate is polarized
and shrill. But there comes a point
at which tolerance breaches the
standard of care.
Medicine needs to embrace a
brand of professionalism that de-
mands less self-interest, not more.
Conscientious objection makes
sense with conscription, but it is
worrisome when professionals
who freely chose their field parse
care and withhold information
that patients need. As the gate-
keepers to medicine, physicians
and other health care providers
have an obligation to choose spe-
cialties that are not moral mine-
fields for them. Qualms about
abortion, sterilization, and birth
control? Do not practice women’s
health. Believe that the human
body should be buried intact? Do
not become a transplant surgeon.
Morally opposed to pain medica-
tion because your religious beliefs
demand suffering at the end of
life? Do not train to be an inten-
sivist. Conscience is a burden that
belongs to the individual profes-
sional; patients should not have
to shoulder it.
Patients need information, re-
ferrals, and treatment. They need

59. all legal choices presented to
them in a way that is true to the
evidence, not the randomness of
individual morality. They need
predictability. Conscientious ob-
jections may vary from person to
person, place to place, and proce-
dure to procedure. Patients need
assurance that the standard of care
is unwavering. They need to know
that the decision to consent to
care is theirs and that they will
not be presented with half-truths
and shades of gray when life and
health are in the balance.
Patients rely on health care pro-
fessionals for their expertise; they
should be able expect those profes-
sionals to be neutral arbiters of
medical care. Although some
scholars advocate discussing con-
flicting values before problems
arise, realistically, the power dy-
namics between patients and pro-
viders are so skewed, and the time
pressure often so great, that there
is little opportunity to negotiate.
And there is little recourse when
care is obstructed — patients have
no notice, no process, and no ad-
vocate to whom they can turn.
Health care providers already
enjoy broad rights — perhaps

60. too broad — to follow their guid-
ing moral or religious tenets when
it comes to sterilization and abor-
tion. An expansion of those rights
is unwarranted. Instead, patients
deserve a law that limits objections
and puts their interests first. Phy-
sicians should support an ethic that
allows for all legal options, even
those they would not choose. Fed-
eral laws may make room for the
rights of conscience, but health care
providers — and all those whose
jobs affect patient care — should
cast off the cloak of conscience
when patients’ needs demand it.
Because the Bush administration’s
rule moves us in the opposite di-
rection, it should be rescinded.
Dr. Cantor reports representing an af-
filiate of Planned Parenthood in a legal
matter unrelated to conscientious objec-
tion. No other potential conf lict of interest
relevant to this article was reported.
This article (10.1056/NEJMp0902019) was
published at NEJM.org on March 25, 2009.
Dr. Cantor is an adjunct professor at the
UCLA School of Law, Los Angeles.
42 U.S.C.A. § 300a-7(d).1.
Shelton v. Univ. of Medicine & Dentistry 2.
of New Jersey, 223 F.3d 220 (3d Cir. 2000).

61. Pear R. Protests over a rule to protect 3.
health providers. New York Times. Novem-
ber 17, 2008:A14.
Press release of the State of Connecticut At-4.
torney General’s Office, Hartford, February 27,
2009. (Accessed March 20, 2009, at http://www.
ct.gov/ag/cwp/view.asp?A=3673&Q=434882.)
Liptak A. On moral grounds, some judges 5.
are opting out of abortion cases. New York
Times. September 4, 2005.
Copyright © 2009 Massachusetts Medical Society.
Conscientious Objection Gone Awry — Restoring Selfless
Professionalism in Medicine
Reproduced with permission of the copyright owner. Further
reproduction prohibited without permission.